Many years ago the Canadian
Law system (I don’t think of it as a justice system) attached
liability and negligence to someone other than the person who
caused an alcohol related accident. What that means is a
restaurant or bar could be held responsible for damages caused
by a patron who drank too much, then drove away and was involved
in a mishap. This became known as “Commercial Host Liability”,
and it is similar to “social host liability”, which pins the
blame on a private citizen who hosts a party, for the
damages/injuries caused by someone attending that party.
Is it the responsibility
of the pilot or the aircraft owner when things go wrong?
Another way the courts attach
liability is with what is called “Negligent Entrustment”. The
term has been around a long time in the United States, but is
relatively new in Canadian negligence cases. The basic concept
is that the supplier of an item (legally known as a chattel),
often a vehicle like a car or a snowmobile, even an aircraft,
has a duty not to supply it to someone he/she
knows is incompetent to safely use it. Negligence can be found
against a supplier who ought to have known he was supplying the
item to a person who would cause an unreasonable risk of harm.
It is all legal ideology, but
in simple terms is nothing more than placing responsibility
where it probably should not be placed … the passing of the
buck, so to speak, from the one committing the act to someone
It seems to me that there is
always something new coming out of the courts. Huge sums are
awarded a plaintiff for frivolous lawsuits, the likes of which
make headlines and inspire other opportunists to hire a lawyer
to make a fortune. Almost everything associated with aviation is
a target. Negligent Entrustment is sure to grow in Canada as it
has been long considered a “sleeper” of sorts, an underused
additional source for finding liability in certain
I suspect there is plenty of
room for negligence lawsuits directed at small aviation charter
operators. As well, FBO’s who supply rental aircraft can be on
dangerous ground and facing prosecution from survivors and
family members of airplane renters who meet with an accident.
Let’s assume the renter/pilot is properly licensed and
meets all the requirements of Transport Canada. If the FBO rents
the aircraft to the pilot, can the FBO still be held responsible
for what turns out to be the pilot's mistakes?
Sometimes, the answer is yes.
A good example is this story from 2010. An FBO/flight school in
San Jose, California was successfully sued by the family of a
passenger who was killed in the crash of a rental airplane
belonging to that FBO. A young pilot had just recently received
his private pilot certificate (known in Canada as a license). He
was comfortable flying the FBO's Piper Archer in which he had
been "checked out" by one of their instructors. The renter was
considered a good pilot.
One day the pilot showed up
to rent the Archer. He told the FBO that he wanted to fly two
friends to Lake Tahoe airport, which is 6,250’ ASL. The pilot
hadn't obtained the mountain-flying instruction, but the FBO
rented the aircraft to him anyway.
The pilot landed at Lake
Tahoe airport without incident. But he wasn't prepared for the
effects of the altitude, heat, and weight of the aircraft on
takeoff. When he attempted to depart, he crashed, killing
himself as well as his two passengers.
The family of one of the
passengers sued the FBO, arguing it should never have rented the
plane to the pilot for this particular trip. The jury agreed and
held the FBO liable.
During the appeal, the FBO
argued that the pilot held a license that legally entitled him
to fly anywhere he wanted, including mountain airports
like Lake Tahoe. If the pilot was competent in the eyes of the
FAA, he should have been deemed competent in the eyes of the
The court of appeal
disagreed, and affirmed the jury's verdict against the FBO.
Though the young pilot may have been a competent pilot generally, that wasn't the issue. The FBO knew
that, notwithstanding his license, the pilot wasn't competent
for the particular flight he had planned. The
appeals court ruled that the jury properly held the FBO liable
for the accident under the law of “negligent entrustment”.
This is really not that
complicated, at least in the eyes of the law. In my opinion
though, it’s the law that is flawed, and although it must be
interpreted as written, it should not have been written in the
first place. Go back to the commercial host liability explained
at the beginning of this article. That too is something that
should be scrapped. When I was a young boy, I was taught
responsibility! When I did something, it was my decision,
therefore my responsibility. When my bicycle was lost, it wasn’t
anyone’s fault but mine. It was my decision if I drank too much
beer to drive home from a pub too. We never thought to try
blaming someone else. But in today’s world, things are
different. The question is which came first? Was it the laws or
the people refusing to take responsibility for their own
I understand and expect there
are many out there who would disagree. But there is no doubt
that more and more, people are demanding that the government
should take over the care, the decision-making and the
management of just about everything in society! Buyer beware,
due diligence, social and personal responsibility are all
disappearing as choices that individuals should be making for
themselves. We’re turning in to a brainless society, feeling
secure with someone else, some form of government or marketing
board or regulatory body being there to care for us. If we trip
on a curb, it’s the fault of the business that happens to share
that sidewalk. If a pilot makes a mistake, the blame is shifted
to the airplane manufacturer for allowing a fool-proof machine
out the doors of the factory.
It’s near time the madness
was brought under control, lest we all become robots, cared for
by the state.